C-SPAN's Supreme Court Broadcasts: Assisted Suicide

This is the third in a series of 10 special Politics Daily columns to complement C-SPAN's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The C-SPAN broadcasts will afford most Americans their first opportunity to hear the actual words spoken by the justices and the lawyers before them in arguments that shaped the law that has shaped our lives in countless ways. The third featured tape in the series, focusing on the Washington v. Glucksberg right-to-die/assisted suicide argument in 1997, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, Oct. 16. Subsequent tapes will be aired each Saturday evening until Dec. 18. The first in this series, on the Miranda warning, can be found here. The second, on flag-burning and the Constitution, can be found here.

Does the Constitution give a person the liberty to choose death over life?

The Supreme Court in 1997 faced that question in Washington v. Glucksberg and it did so at a time in our nation's history when the question of the morality and the legality of assisted suicide was very much a subject of intense public debate. Much more so than today. The popularity (many say infamy) of Dr. Jack Kevorkian, a Michigan doctor who became (and remains) a universal symbol of the issue, was perhaps at its peak. In fact, the case was decided two weeks after jury selection began in the fourth Michigan trial of Kevorkian based upon his conduct in assisting the elderly to die by administering lethal doses of medication.

The plaintiffs in Washington v. Glucksberg were four doctors, three very ill patients, and a nonprofit group which counseled patients who were contemplating assisted suicide. They sued to overturn Washington's law, which criminalized assisting or aiding or abetting in suicide. The three patients died before the Supreme Court decided the case. Their lawyers argued that they have a constitutional due process right -- a liberty interest -- in choosing the manner of their death. Washington's attorney general argued that no such fundamental right existed -- so that the state law precluding legal assisted-suicide was a justifiable infringement upon an individual's personal choice.

The United States Supreme Court in Washington v. Glucksberg was unanimous in its judgment but scattered in its analysis. The Court's majority opinion, written by Chief Justice William Rehnquist was brief. "To hold for [the doctors], we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State," he wrote. The case, the chief justice implied, was a fairly simple one: if states weren't recognizing suicide-rights, the Court wasn't about to recognize them, either. Glucksberg is important, therefore, not just what what the justices ultimately did but how they openly discussed philosophical issues like life and death.

All nine justices ruled that Washington state could continue to prohibit suicide and assisted suicide. But there were no fewer than six opinions. Justice John Paul Stevens, for example, wrote separately to say that while he voted against the plaintiffs there might one day be a set of circumstances in which a person could have a constitutional right to assist in a suicide. Justice David Souter was even more direct. He wrote separately as well and practically invited state legislatures around the country to tackle the "new issue" of physician-assisted suicide regulation.

William L. Williams argued the case on behalf of the state of Washington. "The issue here today," he told the justices at the start, "is whether the Constitution requires that the social policy (criminalizing suicide) developed by Washington voters must be supplanted by a far different social policy, a constitutionally recognized right to physician-assisted suicide that is contrary to our traditions and overrides the important state interests that are served by the Washington statute." Listen during his argument to the sparring between the justices -- especially between the chief justice and Justice John Paul Stevens.

Next up was Walter Dellinger, at the time the Solicitor General of the United States, on behalf of the Clinton administration. The government had intervened in the case to assert its view that it believed individuals did possess some sort of liberty interest -- not in dying, per se, but in being free from state laws which blocked their ability to be free from pain and suffering before they died. It was a subtle point -- "a narrow issue," Dellinger conceded. And you can hear in the sharp tone of Justice Antonin Scalia's voice that he wasn't buying it. "When is it that you suppose this liberty interest that didn't use to exist sprang into existence? When? 1963? What year do you think it came to be?" he asked Dellinger.

Finally, on behalf of the plaintiffs in the case, came Kathryn Tucker. "The physician is the gatekeeper for the medications that can bring that peaceful end to the suffering that for these patients is intolerable," she told Rehnquist when he challenged her assertion that the case was more about doctors and less about a patient's right to choose the manner of his own death. Scalia, too, pushed her repeatedly. Where do we draw the line, the justice wanted to know, between a patient on the threshold of death and one who has just been told by his doctor that he'll have to live another 10 years in terrible pain?

No one who heard the argument live would have assumed the Court would strike down the Washington law and it didn't. Even Justice David Souter, who might have naturally allied with the plaintiffs, had a hard time grasping where the justices were supposed to draw the line around this newly recognized right. Listen for his genuine puzzlement. And listen, too, to a candid assessment of the process of dying by Justice Ruth Bader Ginsburg -- who lost her beloved husband this past June -- for one of the more unintentionally poignant moments you'll ever hear in an oral argument session. "This [issue] applies to everyone," she said.

Finally, the follow up. Nine years after the Supreme Court backed Washington's law, the right-to-die question came up again in Oregon, where voters passed the Death With Dignity Act, which exempted from liability doctors who administered life-terminating drugs to patients under the careful procedures set forth in the Act. The Bush Administration challenged the practice as a violation of the federal Controlled Substance Act. In Gonzales v. Oregon, a 5-4 Court (with Justice Anthony Kennedy as the swing vote) ruled that Oregon's measure trumped federal regulations governing the dispensation of medicines used to assist suicide. The Oregon law is still on the books. And Washington state now has one, too.